President Trump’s citing of the Alien Enemies Act of 1798 to deport Venezuelan migrants believed to be affiliated with the Tren de Aragua gang swiftly initiated a legal dispute.
A federal judge granted a temporary restraining order that halted the enforcement of the 18th-century statute. Nonetheless, on the same day as the March 15 ruling, three flights with over 200 Venezuelan men were sent to El Salvador to be detained in the country’s maximum security prison.
White House representatives informed CBS News last week that 137 of these Venezuelans were expelled under the Alien Enemies Act. An additional 101 individuals were removed via what officials referred to as “regular” procedures under the 1952 Immigration and Nationality Act. This included people who purportedly signed deportation documents after illegally crossing the border, as stated by officials.
The administration has challenged the judge’s ruling.
Here’s what you should know about the Alien Enemies Act and its applications.
What is the Alien Enemies Act of 1798?
The Alien Enemies Act is one of the laws introduced as part of the Alien and Sedition Acts in 1798 under President John Adams and the Federalist-led Congress. At that time, the U.S. was bracing for a potential conflict with France.
This law stipulates that when the U.S. is at war or facing an “invasion or predatory incursion” by another nation, the president has the authority to detain and deport citizens of the adversary nation without due process.
Two additional laws from the Alien and Sedition Acts increased the duration an immigrant had to reside in the U.S. before becoming eligible for citizenship and empowered the president to expel non-citizens deemed to pose a threat to the “peace and safety of the United States,” as noted by the National Archives. The fourth law, the Sedition Act, curtailed speech that was considered critical of the government, leading to the prosecution of journalists and others.
Resistance to the Alien and Sedition Acts contributed to the Federalists’ defeat in the 1800 election, won by Thomas Jefferson, the Democratic-Republican candidate.
Jefferson allowed three of the four laws to expire, according to historians. However, the Alien Enemies Act lacked an expiration clause, allowing it to remain in effect.
The Neighbors Not Enemies Act is a proposed piece of legislation aimed at repealing the Alien Enemies Act. It was reintroduced in January by Rep. Ilhan Omar of Minnesota and Sen. Mazie Hirono of Hawaii, both Democrats.
How is Trump employing the Alien Enemies Act?
In a proclamation invoking the Alien Enemies Act on March 15, President Trump asserted that Tren de Aragua, a Venezuelan gang, “is perpetrating, attempting, and threatening an invasion or predatory incursion against the territory of the United States.” He declared that all Venezuelan citizens older than 14 years who are members of Tren de Aragua and are neither U.S. citizens nor lawful permanent residents are “subject to apprehension, restraint, securing, and removal as Alien Enemies.”
Chief Judge James Boasberg of the D.C. District Court, who temporarily barred President Trump from removing immigrants under this law, has questioned its legality in this context.
“Despite the President’s assertion, Tren de Aragua does not constitute a ‘foreign nation or government,’ and its actions, no matter how severe, do not equate to an ‘invasion’ or a ‘predatory incursion,'” he stated.
During a March 19 briefing, White House press secretary Karoline Leavitt remarked that “when you examine the act… a predatory incursion is precisely what has transpired with Tren de Aragua. They have been sent here by the hostile Maduro regime in Venezuela. And the president, immediately upon taking office, designated TdA as a foreign terrorist organization.”
In what other instances has the Alien Enemies Act been utilized?
The law has been invoked three additional times throughout U.S. history: during the War of 1812, World War I, and World War II.
In 1812, the Madison administration required British nationals in the U.S. to provide information to the government, including their age, addresses, duration of stay in the U.S., and occupations, as documented by then-Secretary of State James Monroe.
President Woodrow Wilson invoked the act in 1917 to restrict the actions and speech of citizens from Germany and its allies during World War I. This invocation resulted in the internment of over 6,000 German nationals and “other enemy aliens,” according to the National Archives.
Subsequently, after the Japanese attacked Pearl Harbor in 1941, President Franklin D. Roosevelt invoked the Alien Enemies Act to detain citizens of Japan and the other Axis powers, including Germany and Italy. Roosevelt also issued an executive order permitting the internment of Japanese Americans, leading to the forced relocation of more than 100,000 individuals of Japanese descent to internment camps—an action for which the federal government formally apologized in 1988.
In 1948, the Supreme Court ruled in the case of Ludecke v. Watkins, involving a German national ordered removed in 1946 under the Alien Enemies Act, despite the cessation of hostilities in World War II. In a closely contested 5-4 ruling, the Court dismissed the challenge from the German national, asserting that “a state of war” persisted and affirmed that it was a matter of “political judgment” to determine if an individual could be removed under the Alien Enemies Act, which prohibits judicial review.
“It is not for us to question a belief by the President that enemy aliens who were justifiably deemed fit subjects for internment during active hostilities do not lose their potential for mischief during the period of confusion and conflict characterizing a state of war, even when the guns are silent but peace has not yet been achieved,” Justice Felix Frankfurter articulated in the opinion.
In dissent, Justice Hugo Black contended that it is “nothing but a fiction” to assert that the U.S. was still at war with Germany, insisting that “the 1798 Act did not bestow extraordinary and perilous powers to be exercised during the period of fictitious wars.”
